This was an action brought by Mullen and McPhee against the Western Union Beef Company, in the district court of Arapahoe county, Colo., to recover damages for loss of stock occasioned by the communication from cattle of defendant to cattle of plaintiffs of the disease known as spenetic or Texas fever, by the importation into Colorado of a herd of Texas cattle, in June, 1891, and suffering them to go at large, in violation of the quarantine rules, regulations, and orders of the United States department of agriculture, in accordance with the act of congress approved May 29, 1884, entitled 'An act for the establishment of a bureau of animal industry,' etc. (23 Sta . 31, c. 60), and the act approved July 14, 1890 (26 Stat. 287, c. 707), and in violation of the quarantine rules and regulations of the state of Colorado. The trial resulted in a verdict for defendant, on which judgment was entered. Plaintiffs sued out a writ of error from the court of appeals of the state of Colorado, and the judgment was affirmed (49 Pac. 425), whereupon the present writ of error was allowed.
The court of appeals held that the question of violation by defendant of the quarantine rules and regulations of the state need not be considered because, 'upon sufficient evidence, it was settled by the jury in defendant's favor'; that 'no question of negligence generally in the shipment and management of the cattle is presented by the record'; and that the theory on which the case had been tried below and was argued in that court was that, 'if the loss of the plaintiffs' [173 U.S. 116, 117] cattle was in consequence of disease communicated by the cattle of the defendant, its liability depends upon its acts with reference to rules and reguiations which it was legally bound to observe.'
The regulations of the secretary of agriculture were as follows:
The court, after stating that the territory described in both orders included that from which the defendant's cattle were shipped, said: 'It is the rules relating to the isolation of cattle moved from infected districts, and more particularly the second proviso of the second order, which were claimed to have been violated by the defendant.'
And it was th n ruled that the regulations were not binding, as it was not shown that the state had agreed to them; that they were not authorized by the statute; that 'the second provision undertakes to regulate the duties, in relation to them [the cattle], of the persons by whom they might be removed after their arrival in the state, and it is upon this provision that plaintiffs' reliance is chiefly placed. After becoming domiciled within the state, their management would be regulated by its laws, and not by the act of congress. Any violation of the federal law in connection with the cattle would consist in their removal. The disposition of them after- [173 U.S. 116, 119] wards was not within the scope of the statute.' 49 Pac. 425.
T. B. Stuart and W. C. Kingsley, for plaintiffs in error.
C. S. Thomas and W. H. Bryant, for defendant in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
We are met on the threshold by the objection that the writ of error runs to the judgment of the court of appeals, and cannot be maintained, because that is not the judgment of the highest court of the state in which a decision could be had.
The supreme court of Colorado is the highest court of the state, and the court of appeals is an intermediate court, created by an act approved April 6, 1891 (Sess. Laws Colo. 1891, 118), of which the following are sections:
The supreme court of Colorado has held, in respect of its jurisdiction, under these sections, that, whenever a constitutional question is necessarily to be determined in the adjudication of a case, an appeal or writ of error from that court will lie; that 'it matters but little how such question is raised, whether by the pleadings, by objections to evidence, or by argument of counsel, provided the question is by some means fairly brought into the record by a party entitled to raise it,' but 'it must fairly appear from an examination of the record that a decision of such question is necessary, and also that the question raised is fairly debatable' (Trimble v. People, 19 Colo. 187, 34 Pac. 981); and also that, 'when it appears by the record that a case might well have been disposed of without construing a constitutional provision, a construction of such provision is not so necessary to a determination of the case as to give this court jurisdiction to review upon that ground' ( Board v. McIntyre, 23 Colo. 137, 46 P c. 638); and, again, that 'unless a constitutional question is fairly debatable, and has been properly raised, and is necessary to the determination of the particular controversy, appellate jurisdiction upon that ground does not exist.' Madden v. Day, 24 Colo. 418, 51 Pac. 165.
This record discloses that defendant insisted throughout the trial that the acts of congress relied on by plaintiffs were unconstitutional, if construed as authorizing the particular regulations issued by the secretary.
When plaintiffs offered the rules and regulations in evidence, which they contended defendant had violated, defend- [173 U.S. 116, 121] ant objected to their admission on the two grounds that they were not authorized by the acts of congress, and that, if they were, such acts were unconstitutional. The objection was overruled, and defendant excepted.
The regulations having been introduced in evidence, plaintiffs called as a witness, among others, a special agent of the department of agriculture, who was questioned in respect of their violation, to which defendant objected and excepted on the same grounds.
At the conclusion of plaintiffs' case, a motion for nonsuit was made by defendant, the unconstitutionality of the acts under which the regulations were made being again urged, and an exception taken to the denial of the motion.
The trial then proceeded, and, at its close, defendant requested the court to give this instruction: 'The court instructs the jury that the act of congress, and rules and regulations made under the same, which the plaintiffs allege to have been violated, are not authorized by the constitution of the United States, and are not valid subsisting laws or rules and regulations with which the defendant is bound to comply, and any violation of the same would not, of itself, be an act of negligence, and you are not to consider a violation of the same as an act of negligence in itself in arriving at a verdict in this case.'
This instruction was objected to and was not given, though no exception appears to have been thereupon preserved.
On behalf of plaintiffs the court was asked to instruct the jury as follows:
This was refused by the court, and plaintiffs excepted. But the court charged the jury that the rule promulgated by the secretary of agriculture 'would have the effect to give to this defendant notice that the United States authorities having in charge the animal industries, so far as the government of the United States may control it, were of the opinion that it was unsafe to ship cattle from Kimble county, at that period of the year, into Colorado, and graze them upon lands that were being occupied by other cattle intended for the eastern market, or to allow them to commingle with them.' To this modification of the instruction requested, plaintiffs saved no specific exception.
After the affirmance of the judgment by the court of appeals, plaintiffs filed a petition for a rehearing, the eighth specification of which was that:
It thus appears that if the trial court and the court of appeals had been of opinion that the secretary's rules and regulations were within the terms of the authority conferred by the statutes, and that noncompliance therewith would have constituted negligence per se, those courts would have been necessarily compelled to pass upon the constitutionality of the acts, which question was sharply presented by defendant. And it is also obvious that if the supreme court had been applied to and granted a writ of error, and that court had differed with the conclusions of the court of appeals, arrived at apart from constitutional objections, the validity of the acts and regulations would have been considered. [173 U.S. 116, 123] The court of appeals seems to have been of opinion that, after the cattle arrived in Colorado, congress had no power to regulate their disposition, and hence that the regulations were not binding. And the question of power involved the construction of a provision of the constitution of the United States. At the same time, its judgment may fairly be said to have rested on the view that the statutes did not assert the authority of the United States, but conceded that of the state, in this regard; and that the regulations were not within the terms of the statutes. But, if the case had reached the supreme court, that tribunal might have ruled that the judgment could not be sustained on these grounds, and then have considered the grave constitutional question thereupon arising.
And although the supreme court might have applied the rule that, where a judgment rests on grounds not involving a constitutional question, it will not interfere, we cannot assume that that court would not have taken jurisdiction, since it has not so decided in this case, nor had any opportunity to do so.
We must decline to hold that it affirmatively appears from the record that a decision could not have been had in the highest court of the state, and, this being so, the writ of error cannot be sustained. Fisher v. Perkins, 122 U.S. 522 , 7 Sup. Ct. 1227.
Writ of error dismissed.